Agreements of old can haunt us today.

In 1890, when most of Long Island was comprised of farms and cattle ranches, the area that is now called "The Hamptons" was beginning to be settled by wealthy vacationers from New York City.

Among those wealthy families were the Posts who owned a large parcel of ocean front property in Quogue, Suffolk County, New York. This property was divided and one portion was sold to Henry Gardiner. Later, in 1911 the other parcel was sold to Josephine Chalmars. The Gardiner parcel, upon which a large house was built, ultimately came into the hands of Mrs. Stanton and the Chalmars parcel was eventually sold to Mr. and Mrs. Grant. The Grant property contained a private road that ran alongside the Stanton property.

When Mrs. Stanton purchased her property, in 1965, she entered into an agreement with the Grants and paid the Grants $200 in exchange for which Stanton would be permitted to use this private road for ingress and egress to the Stanton house for as long as Mrs. Stanton lived and for as long as she owned and occupied the property. The agreement also provided that Mrs. Stanton was to pay her proportion of share of the cost of maintaining and repairing the private road. Mrs. Stanton over time, also installed a gravel parking area and improved the road by installing a border of Belgium block paving stones alongside the road

The Grants thereafter built their home and the private road was used by them and the Stantons in a cordial and neighborly fashion.

The Grants and the Stantons enjoyed a close social relation for several years until the bringing of this law suit after the Grants sold their property to the Slacks. As part of their contract of sale, the Grants obligated themselves to bring a law suit to attempt to terminate the long standing arrangement with Mrs. Stanton with respect to the use of the private road. The law suit was commenced in which the Grants sought a permanent injunction prohibiting the Stantons from using the private road on the Grants' property. The Grants also sought a declaratory judgment that the agreement which was made 24 years before between the Grants and Mrs. Stanton was no longer valid.

Mrs. Stanton counterclaimed seeking an injunction preventing any interference with her use of the private road as provided in the 1965 agreement as well as by virtue of a prescriptive easement which Mrs. Stanton claimed existed even before the 1965 agreement.

Justice Mary M. Werner of the Supreme Court, Suffolk County wrote a detailed history of the ownership of the property and relied upon the long memories of many witnesses who. recalled how this property was used at the turn of the century to arrive at her decision.

One witness testified that as a young man growing up in Quogue in the early part of this century, he visited Mrs. Chalmars who owned the property at that time. He stated that the private road then existed and that he and his family used that road frequently to travel by foot, bicycle, horse and buggy and later by automobiles in their visits to the Chalmars.

Another witness, a Mr. Fairman also testified that he owned the Stanton house from 1948 until he sold it to Mrs. Stanton in 1965 and that during that time the private road was used to access his property and that in fact he believed that road belonged to him. He testified that nobody used that road except himself and his family and that the Fairmans maintained the road as their own.

Another witness, David Mullen rented the house from the Fairmans for two years and also used this private road for access to the Stanton house and maintained this road while he was in residence at the house.

After Mrs. Stanton bought the property she, as well as her visitors, continued to use the road in essentially the same fashion; for access to her home.

Justice Werner considered the testimony of the witnesses and concluded that for over 80 years this private road was used openly and notoriously and continuously by the owners of the Stanton house and others who visited the Stanton house. At one time, if such use continued over 20 years, the users of the road would acquire permanent easement over the property. This period was later reduced by statute to 15 years and then in 1963 to a period of 10 years. In this case, the use of the road as an access to the Stanton house continued over 80 years. Accordingly, a prescriptive easement was established in favor of the owners of the Stanton house over the private road on the Grants' property.

Justice Werner considered the significance of the 1965 agreement between the Grants and Mrs. Stanton as to the use of the private road. The judge ruled that since an easement had already been created by prescription since the turn of the century, the Stanton-Grant agreement was of no effect. This agreement which provided for the termination of the use of the road on the death of Mrs. Stanton or the transfer of her property was not controlling since Mrs. Stanton and her predecessors already enjoyed the right to use that road. The Court ruled that there was no evidence that the 1965 agreement intended to terminate this easement which had been in existence for approximately 80 years. This agreement could not be construed as extinguishing an easement where the agreement neither mentions the easement or manifests an intent by the dominant owner (Stanton) to release it. The payment of $200 was made by Stanton who already had the easement, to the Grants and was therefore not valid consideration for the relinquishment of the easement. This agreement, which provided for the right of Mrs. Stanton to use the road, a right which she already had, was therefore irrelevant.

Accordingly, the Court ruled that Stanton was entitled to an permanent injunction preventing the Grants or any one else from interfering with her use of the private road.

The Court did find however, that the Mrs. Stanton exceeded her rights under the prescriptive easement by constructing the gravel parking area and by the installation of the Belgium block trim along the road. There was no evidence introduced at the trial that the easement to use the private road also included a right to construct a gravel parking area and to install Belgium block paving stones. The Court therefore ordered the Belgium block stones and the gravel parking area removed.

Thus, the rights of landowners in 1992 were determined by the activities and conduct of persons owning and using their properties going back to the turn of the century.

(Grant v Stanton: Supreme Court, Suffolk County New York Law Journal, April 15, 1992, Page 28, Column 1)

Edward L. Schiff, is the senior partner in the New York City Law Firm of Schiff; Turek, Kirschenbaum.